William & Mary Environmental Law and Policy Review
Volume 29 | Issue 3
Environmental Justice Since Hammurabi: From
Assigning Risk "Eye for an Eye" to Modern-Day
Application of the Responsible Corporate Offcer
Doctrine
Peter C. White
Repository Citation
Peter C. White, Environmental Justice Since Hammurabi: From Assigning Risk "Eye for an Eye" to
Modern-Day Application of the Responsible Corporate Offcer Doctrine, 29 Wm. & Mary Envtl. L. &
Pol'y Rev. 633 (2005), http://scholarship.law.wm.edu/wmelpr/vol29/iss3/3
Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/wmelpr
Article 3
ENVIRONMENTAL JUSTICE SINCE HAMMURABI: FROM
ASSIGNING RISK "EYE FOR AN EYE" TO MODERN-DAY
APPLICATION OF THE RESPONSIBLE CORPORATE
OFFICER DOCTRINE
PETER C. WHITE*
INTRODUCTION
Most legal scholars credit the genesis of the public welfare
statutes and the responsible corporate officer doctrine to two
Supreme Court cases, United States v. Dotterweich1 and United
States v. Park,2 where the Supreme Court upheld the use of strict
liability for misdemeanor violations of the Federal Food, Drug, and
Cosmetics Act ("FDCA"). 3 But the doctrine may be older still.
Hammurabi's Code of Laws4 made a residential home builder
criminally liable "[i]f a builder build a house for some one, and
does not construct it properly, and the house which he built fall in
and kill its owner, then that builder shall be put to death."5 If the
* Law Clerk, Court of Appeals of Virginia. I would like to thank Barry Breen of
EPA for his inspiration as a teacher and support in writing this Article.
1 320 U.S. 277 (1943).
2 421 U.S. 658 (1975).
3 21 U.S.C. §§ 301-399 (1994).
4 HAMMURABI'S CODE OFLAWS § 229 (c. 1780 B.C.E.) (L.W. King trans.), available
at http://www.fordham.edulhalsall/ancient/hamcode.html (last visited Feb. 6,
2005). Hammurabi ruled Babylon, the world's first metropolis, from circa 1795
to 1750 B.C.E. Id.
5 Id. Similarly, "[i]f [the building collapse] kill the son of the owner the son of
that builder shall be put to death." Id. § 230. The Code addresses other
unacceptable risks from faulty buildings and liability for shipbuilding. "If it kill
a slave of the owner, then he shall pay slave for slave to the owner of the house."
§ 231. "If it ruin goods, he shall make compensation for all that has been ruined,
and inasmuch as he did not construct properly this house which he built and it
fell, he shall re-erect the house from his own means." § 232."If a builder build a
house for some one, even though he has not yet completed it; if then the walls
seem toppling, the builder must make the walls solid from his own means." §
233. "If a shipbuilder build a boat for some one, and do not make it tight, if
during that same year that boat is sent away and suffers injury, the shipbuilder
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builder were liable for the construction faults of his officers, this
would make Hammurabi's Code the very first public welfare
statute involving the responsible corporate officer ("RCO")
doctrine.6 What the Code recognized, as did the Court in
Dotterweich,is that those who have a duty to prevent serious harm
to a helpless public should be held liable.7
The flurry of criticism over the addition of the RCO provision
to the Clean Air Act ("CAA")' has focused on its application of strict
liability and the mens rea requirement. Dotterweich and Park both
applied what appeared to be strict liability for violations of FDCA.9
The fear was that if "the building fell," non-culpable corporate
officers would be held strictly liable and, like the builders in
Hammurabi's time, would face the most severe penalties. °
This fear was unfounded. The "liability net" which many
believed would be cast far and wide caught no fish. No corporate
officer was held strictly liable; public welfare offenses evolved as
the courts conscientiously applied the "knowing" requirement to
environmental statutes and the RCO provision."
However, traditional criminal law theory and case law support
another use of the RCO provision, one in which the statute is the
source of a duty for a corporate officer who is responsible in
relation to a public danger. The duty is to actively seek to prevent
and remedy violations. This Article explores the value of defining
the RCO provision as the actus reus of a crime-the omission or
breach of a statutory duty. This theory can further the
environmental regulatory program by deterring would-be violators
and by increasing compliance, despite the fact that the RCO
shall take the boat apart and put it together tight at his own expense. The tight
boat he shall give to the boat owner." § 235.
'Whether Hammurabi's Code recognized any defenses to liability is unknown.
7Dotterweich, 320 U.S. at 278.
8 42 U.S.C. §§ 7601-7671 (2000).
' See Park, 421 U.S. at 658; Dotterweich, 320 U.S. at 277; 21 U.S.C. §§ 301-399
(2000).
'oSee infra note 90 and accompanying text.
" See, e.g., United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35
(1st Cir. 1991) (holding instruction that jury could infer knowledge based on
defendant's status as a corporate officer reversible error).
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RESPONSIBLE CORPORATE OFFICERS
635
provision is now rarely used to prosecute corporate officers. Part I
traces the evolution of criminal provisions and the addition of the
responsible corporate officer clause in environmental statutes. Part
II follows the case law that has slowly evolved from 1943 to the
present. Part III discusses why the RCO provision is not used more
often, and how it nevertheless serves an important function in
environmental law. Finally, this Article concludes with suggested
improvements to how and when the RCO doctrine should apply.
I.
THE RESPONSIBLE CORPORATE OFFICER IN ENVIRONMENTAL
STATUTES
A.
Development of CriminalProvisionsin Environmental Statutes
During the 1970s and 1980s, when the major federal environmental statutes were first enacted, rigorous enforcement of their
criminal provisions was the exception rather than the rule.' 2
Limited enforcement during the implementation phase was seen
simply as fair, as regulatory agencies focused on educating
industry on how to comply with the vast and comprehensive
regulatory scheme, which demanded dynamic and evolutionary
changes in behavior.' 3 Compliance, implementation, and education
were the main goals. 4 Also, lack of criminal enforcement was due
to the fact that the first criminal provisions were misdemeanors,
and frequently involved only minimal penalties-there was thus
12
ENVIRONMENTAL LAW INSTITUTE, LAW OF ENVIRONMENTAL PROTECTION § 9:30
(Sheldon M. Novick et al. eds., 2002).
" See generally Criminaland Civil Enforcement of EnvironmentalLaws: Do We
Have All the Tools We Need?: HearingBefore the Subcomm. on Crime and Drugs
of the Senate Comm. on the Judiciary, 107th Cong. (2002), available at http:/
judiciary.senate.gov/hearing.cfmi?id=336 (last visited April 5, 2005) (testimony
of Michael J. Penders) (discussing the growth of the EPA's Office of Criminal
Enforcement) [hereinafterHearing]; Kathleen F. Brickey, Environmental Crime
at the Crossroads:The IntersectionofEnvironmentaland CriminalLaw Theory,
71 TUL. L. REV. 487, 494-95 (1996) (discussing incremental nature of change in
environmental law and the shape that the EPA's earliest enforcement efforts
took) [hereinafter Brickey, Crossroads].
14 See Brickey, Crossroads,supra note 13, at 494.
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WM. & MARY ENVTL. L. & POLY REV.
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little justification for the added burden and expense of a criminal
prosecution; 15 most of the Environmental Protection Agency's
("EPA") and the Department of Justice's ("DOJ") legal resources
were devoted to defending the newly enacted laws from various
challenges.16
B. Stiffer CriminalPenalties-PublicPerceptionand Public
Outrage
Once the regulatory program was largely in place, criminal
provisions with felony provisions were added to environmental
statutes." Although criminal provisions were for the most part
added gradually, public outrage at environmental disasters led to
quick congressional response that included the addition of criminal
provisions to environmental statutes. 8 Two such disasters, the
1984 release of cyanide gas in Bhopal, India, and the 1989 Exxon
Valdez oil spill in the Prince William Sound, impacted how the
public viewed environmental violations: that violations of
environmental laws were serious crimes deserving of serious
penalties.
1.
1984: Union Carbide, Bhopal, India
In December 1984, a tank at a Union Carbide pesticide
manufacturing facility in Bhopal, India, containing methyl
15 See
id.
161d.
See infra note 31 and accompanying text.
18 For example, the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. §§ 2701-2761
(1994), was enacted largely as a result of public outrage to the Exxon Valdez
spill. OPA provides enhanced capabilities for oil spill response and natural
resource damage assessment. Id. Some commentators argue that the "moral
outrage" reaction in enacting environmental laws may have hindered effective
cost-benefit compliance schemes. See, e.g., Christopher H. Schroeder, Cool
Analysis Versus Moral Outrage in the Development of FederalEnvironmental
CriminalLaw, 35 WM. & MARYL. REV. 251 (1993) (stating that "moral outrage"
against environmental violations has blurred attempts to effectively enforce a
cost-benefit based compliance scheme).
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RESPONSIBLE CORPORATE OFFICERS
637
isocyanate, an extremely toxic cyanide compound, leaked."9 A
dense cloud of the toxic gas formed and then spread out over an
area of forty square kilometers.2 ° Approximately 3800 people died
as a result of inhaling the methyl isocyanate. 2" Most of the victims
were impoverished squatters who lived next to the factory in huts;
they died as a result of pulmonary edemas and respiratory
infections, while 170,000 more victims suffered other injuries.22
Survivors continue to suffer from an increased number of
stillbirths and spontaneous abortions." Faulty valves that had not
been adequately maintained caused the leak; there was also a lack
of preventive and containment measures in the building where the
tank was housed.24 Union Carbide's behavior subsequent to the
accident did little to add to a growing public perception of
corporate indifference-victims were each compensated an average
of $451.50.25
2.
1989: Prince William Sound and the Exxon Valdez
On March 24, 1989, the Exxon Valdez oil tanker grounded on
Bligh Reef, spilling nearly 11 million gallons of oil into the
biologically rich waters of the Prince William Sound.26 Although
the accident itself did not result in a loss of human life, it did cause
severe damage to a pristine ecosystem and cause incalculable
In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec., 1984,
634 F. Supp. 842, 844 (S.D.N.Y. 1986).
20 Toxics: Justice for Bhopal, Greenpeace, at httpJ/www.greenpeaceusa.org/
bhopal (last visited April 2, 2005).
21 Technology Transfer Network Air Toxics Website: Methyl Isocyanate, U.S.
Environmental Protection Agency, at http://www.epa.gov/ttn/atw/hltheff
(last visited April 2, 2005).
methylis.html
22
See id. These included secondary respiratory infections, lung disabilities, and
damage. Id.
eye
23
Id.
24 Id.
25
26
Toxics: Justice for Bhopal, supra note 20.
In re the Exxon Valdez, 296 F. Supp. 2d 1071, 1077 (D. Alaska 2004); see also
Details about the Accident, Exxon Valdez Oil Spill Trustee Council, at http:l/
www.evostc.state.ak.us/facts/details.html (last visited April 2, 2005).
638
WM. & MARY ENVTL. L. & POLY REV.
[Vol. 29:633
damage to the local economy and area residents." An investigation
revealed that Exxon failed to provide sufficient crew for the vessel
and that the ship lacked adequate navigation equipment.28 Exxon
was also aware that the ship's captain suffered from alcoholism
prior to the incident.2 9
C. Overview of the 1990 Amendments to CAA
Whether the result of accidents like these, or a growing
concern about the environment, by the 1990s the public
overwhelmingly favored broadening criminal liability for violations
of environmental laws. A survey conducted in 1990 found that
seventy-two percent of the public was in favor of incarceration of
deliberate environmental violators.3 ° In 1986, the public rated
environmental crime seventh in importance among national
priorities.3 '
Between 1988 and 1990, Congress added significantly more
stringent environmental standards and tougher criminal
provisions.3 The CAA Amendments of 1990 followed this trend
27
See Exxon Valdez, 296 F. Supp. 2d at 1078.
28
Id. at 1077.
29 Id.
ENVIRONMENT OPINION STUDY, INC., A SURVEY OF AMERICAN VOTERS:
ATTITUDES TOWARD THE ENVIRONMENT 14 (1990).
30
" Robert Deeb, EnvironmentalCriminalLiability,2 S.C. ENVTL. L.J. 159,160-61
(1993) (reporting the results of a 1986 Department of Justice poll of public
attitudes toward crime).
32
Congress added criminal penalties to a variety of environmental statutes. See
Comprehensive Environmental Response, Compensation, and Liability Act §
103(b) (codified in pertinent part at 42 U.S.C. § 9603(b) (2000)) (adding criminal
sanctions for failure to notify or submitting false and misleading information);
Safe Drinking Water Act § 3009-1(a) (codified in pertinent part at 42 U.S.C. §
300h-2(c)(2) (2000)) (adding criminal penalties for willful violations); Toxic
Substances Control Act § 16(b) (codified in pertinent part at 15 U.S.C. § 2615(b)
(2000)) (same); and Endangered Species Act § 11(b) (codified in pertinent part
at 16 U.S.C. § 1540(b)(1) (2000)) (criminalizing "knowing" violations of the Act).
Congress also added more criminal penalty sections to the Clean Water Act
("CWA") in the 1990 Amendments. See 33 U.S.C. § 1319(c) (1994); S. REP. No.
101-94, at 4 (1989), reprintedin 1990 U.S.C.C.A.N. 722, 745.
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RESPONSIBLE CORPORATE OFFICERS
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and generally strengthened environmental protections by adding
provisions for ozone and carbon monoxide in non-attainment areas,
adding provisions limiting emissions from motor vehicles and
increasing the types of regulated pollutants.33 The 1990
Amendments likewise increased the severity of criminal sanctions;
almost all "knowing" violations were upgraded to felonies.34
Penalties were increased from two years to five years for most
violations, and from six months to two years for knowingly making
false statements, with doubled penalties for the second violation.35
In addition, Congress added a "knowing endangerment" provision
which imposes a maximum fine of $1 million and up to fifteen
years in prison.3"
Section 206(b) affirms recent court decisions to explicitly provide
that violations of the prohibition on discharge of oil and
hazardous substances are subject to the criminal penalties
established under § 309 of the Act. These penalties are $2,500$25,000/1 year for negligent violations, $5,000-$50,000/3 years
for knowing violations, and up to $250,000 and 15 years for
knowing endangerment. This amendment is intended to resolve
any ambiguity concerning the intent of Congress on this
question.
Id.
33 Pub. L. No. 101-549, §§ 103-109, 104 Stat. 2399 (1990) (codified as amended
in scattered sections of 42 U.S.C.). The criteria pollutants are sulfur dioxide,
PM10, carbon monoxide, ozone, NOx and lead. Id. One of the requirements of
the 1990 Amendments is the evaluation of the oxides of nitrogen and effect of
volatile organic carbons as precursors of ozone. Id.
3
CAA imposes criminal liability on "any person" who "knowingly" makes a false
material statement, fails to pay fees, or fails to notify or report as required in the
Act. 42 U.S.C. § 7413(c)(2) (2000). Paragraph (c)(4) has a lower mens rea of
"negligence" for releases of hazardous air pollutants listed under section 7412
that places a person in "imminent danger of death or serious bodily injury," with
a maximum sentence of one year, and a five year penalty if the release is done
"knowingly."
Id.
35
1Id. § 7413(c)(2)(C). Additionally, violators are subject to the sometimes harsh
effects of the Federal Sentencing Guidelines. See Judson W. Starr & Thomas J.
Kelly, Jr., Environmental Crimes and Sentencing Guidelines: The Time Has
Come... And It is Hard Time, 20 Envtl. L. Rep. (Envtl. L. Inst.) 10,096 (1990)
(providing an analysis of the impacts and mechanics of the Guidelines).
36 42 U.S.C. § 7413(c)(5) (2000). See generally John Gibson, The Crime of
"Knowing Endangerment" Under the Clean Air Act Amendments of 1990: Is It
640
1.
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[Vol. 29:633
Shifting Responsibility
An important theme in the 1990 Amendments is one of
congressional intent to shift responsibility from employees "merely
doing their jobs" to senior management-corporate officers and
agents who are in the best position to ensure compliance with
environmental laws and those in the best position to prevent
violations. 37 This shift is apparent in a number of ways. For
example, Congress expanded the definition of "person" to include
"an individual, corporation, partnership, association, State,
municipality, political subdivision of a State, and any agency,
department, or instrumentality of the United States and any
officer, agent, or employee thereof."31 Under 42 U.S.C. § 7143(h),
"operator [s]," defined as senior management personnel or corporate
officers, are subject to liability.39 This paragraph specifically
excludes any "employee who is carrying out his normal activities
and who is acting under orders from the employer," although such
employees can be held criminally liable under both provisions if
they act knowingly or willfully.4 ° Similarly, supervisors can be held
criminally liable when they exercise "substantial control" over the
workplace and the procedures employed. 4 '
More "Bark Than Bite" as a Watchdog to Help Safeguard a Workplace FreeFrom
Life-ThreateningHazardousAir PollutantReleases?,6 FORDHAM ENVTL. L.J. 197
(1995) (discussing how the "knowing endangerment" provisions in CAA have
limited usefulness in protecting worker safety due to the addition of ambiguous
legal terms such as "willful" and "into the ambient air" raising the burden of
proof on prosecutors).
" See, e.g., United States v. Shurelds, No. 97-6265, 173 F.3d 430 (Table), 1999
WL 137636, at *2-3 (6th Cir. (Ky.) Mar. 2, 1999) (discussing "normal activities"
of employees under section 113(h)). The Sixth Circuit rejected a void for
vagueness challenge to section 113(h). Shurelds contended that CAA had
conflicting mens rea requirements; 42 U.S.C. § 7413(c)(1) (1994), requires
"knowingly," while (h) required "knowing and willfully." The court found that
exceptions contained in criminal provisions are normally construed as affirmative defenses.
38 42 U.S.C. § 7602(e) (1994).
39 42 U.S.C. § 7413(h) (1994).
40 Id.
41 See United States v. Pearson, 274 F.3d 1225 (9th Cir. 2001). Pearson was
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2.
RESPONSIBLE CORPORATE OFFICERS
641
The Responsible Corporate Officer Provision
The 1990 Amendments also added the "responsible corporate
officer" provision to the definition of "person" in subsection (c)(6). 2
This provision mirrors an identical one that appeared in the Clean
Water Act ("CWA") in the 1977 Amendments.4 3 What was true of
both provisions is that neither in the 1977 enactment nor in 1990
in the CAA Amendments did Congress explain why.' The solitary
comment when RCO was added to CAA was "[tihe committee
intends that criminal penalties be sought against those corporate
officers under whose responsibility a violation has taken place, and
not just those employees directly involved in the operation of the
violating source." 5 However, courts have used two canons of
charged with knowingly causing removal of asbestos containing material
without complying with applicable work practice standards in violation of 42
U.S.C. § 7413(c)(1) (2000). Pearson had instructed employees to use less than
appropriate amounts of water on the asbestos (in order to prevent the
accumulation of particulate matter), and had performed the work using clogged
ventilation machines. The court held that a person could be both an employee
and a supervisor under CAA. The standard for liability as a supervisor is higher
than that of an RCO-the supervisor must have exercised "substantial control"
in the workplace and over workplace procedures. Id. at 1231 (citing United
States v. Walsh, 8 F.3d 659, 662-63 (9th Cir. 1993)).
Under the CAA, a defendant need not possess ultimate,
maximal, or preeminent control over the actual asbestos
abatement work practices. Significant and substantial control
means having the ability to direct the manner in which work is
performed and the authority to correct problems. On any given
asbestos abatement project there could be one or more
supervisors. The term "supervisor" is not limited to the
individual with the highest authority.
Id. at 1231 (citation omitted); see also United States v. Itzkowitz, No. 96-CR-786,
1998 WL 812573 (E.D.N.Y. May 13, 1998) (applying the "substantial control"
standard in finding defendant to be an operator under CAA, 42 U.S.C. § 7413(h)
(1994)).
42 42 U.S.C. § 7413(c)(6) (1994).
43 See Clean Water Act, 33 U.S.C.A. § 1319 (West 2004).
44 See United States v. Brittain, 931 F.2d 1413, 1414 (10th Cir. 1991) (noting
Congress's near silence on the subject).
45
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, CLEAN AIR AMENDMENTS OF
1977, S. REP. No. 95-127, at 51 (1977).
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[Vol. 29:633
statutory construction to interpret RCO. The first is that the
legislature intended to give effect to every word in the statute.46
Second, when the legislature "borrows an already judicially
interpreted phrase from an old statute to use it in a new statute,
it is presumed that the legislature intends to adopt not merely the
47
old phrase but the judicial construction of that phrase."
Hammurabi's Code notwithstanding, the courts looked to the
genesis of the RCO doctrine in the early Supreme Court decisions
of UnitedStates v. Dotterweich48 and UnitedStates v. Park49 to give
meaning to the RCO provision."°
II. THE RESPONSIBLE CORPORATE OFFICER CASE LAW
A.
United States v. Dotterweich5 '
Dotterweich was the President and General Manager of
Buffalo Pharmaceutical, Inc., a company that purchased drugs
from manufacturers, repackaged them, and then distributed them
under its own label.52 Despite the fact that Dotterweich argued
that he had no personal knowledge of the shipments, and therefore
and
could not be found liable, he was convicted of misbranding
53 a misdemeanor under FDCA.5 4
drugs,
shipping adulterated
46
See, e.g., United States v. George, 266 F.3d 52, 62-63 (2d Cir. 2001).
Fusco v. Perini N. River Assocs., 601 F.2d 659 (9th Cir. 1979), vacated on other
grounds by 444 U.S. 1028 (1980); see also Bragdon v. Abbott, 524 U.S. 624, 627
(1998) ("Congress'Is] repetition of a well-established term carries the implication
that Congress intended the term to be construed in accordance with pre-existing
...interpretations.").
48 320 U.S. 277 (1943).
49 421 U.S. 658 (1975).
50 Note that the basis of the responsible corporate officer doctrine, the public
welfare offenses, is older still. See United States v. Balint, 258 U.S. 250, 252
(1922) ("[TIhe emphasis of . . . [public welfare statutes] is evidently upon
achievement of some social betterment rather than the punishment of the crimes
as in cases of mala in se.") (citations omitted).
51 320 U.S. 277 (1943).
52
Dotterweich,320 U.S. at 278.
47
53
14
id.
See 21 U.S.C. § 331(a), (k) (1994).
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RESPONSIBLE CORPORATE OFFICERS
643
In upholding the conviction, the Supreme Court found that
FDCA's misdemeanor penalties served as an important and
necessary means of regulation by acting as an incentive, to keep
adulterated drugs from the public.55 The Court noted that
Dotterweich, viewed in a historical context, came at the beginning
of an era of modern industrialism, where a helpless public was
"largely beyond self-protection."56 The Court also upheld the
conviction although the statute applied strict liability, noting that
Congress did not intend FDCA to have a mens rea requirement,
and the misdemeanor sanctions were justified, despite the absence
of culpable conduct, because of the corporate officer's responsibility
toward the public.58 "Such legislation dispenses with the
conventional requirement for criminal conduct-awareness of some
wrongdoing. In the interest of the larger good it puts the burden of
acting at hazard upon a person otherwise innocent but standing in
responsible relation to a public danger."59 In somewhat circular
logic, the Court here established the two bases underlying the
responsible corporate officer doctrine. First, in certain cases, a
conviction would be upheld without culpable conduct. Second, that
strict liability could be imposed when the corporate official has
failed in his or her duty, that is, when the officer is in "responsible
relation" to a public danger.6"
B.
United States v. Park6
The Court expanded the concept of what constitutes a "relation
to a public danger "62 in Park. Like Dotterweich, Park was the
president of a large commercial distribution chain, a retail food
company called Acme Markets, Inc.63 Acme employed 36,000 people
55
56
Dotterweich, 320 U.S. at 280-81.
Id. at 280.
57 Id.
58 Id.
59
Id. at 281.
60 Id.
6 421 U.S. 658 (1975).
2
6
Dotterweich, 320 U.S. at 281.
3 Park, 421 U.S. at 660.
644
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and had sixteen warehouses throughout the United States.64 In
1970, the Food and Drug Administration ("FDA") advised Park
personally of an appalling rodent infestation in two of Acme's
warehouses, one in Philadelphia and a second in Baltimore.65 As
late as March 1972, FDA inspections revealed that conditions had
improved but that there was still evidence that mice and rat
excrement had contaminated food containers." In a letter written
to Acme, the FDA inspector noted that the "reprehensible conditions obviously existed for a prolonged period of time without any
detection, or were completely ignored."67 Park testified that he was
ultimately responsible for the operations of the company and that
he had been given the responsibility to oversee the sanitary
conditions of the warehouses." In his defense, Park argued that as
head of a large corporation, he could not manage the day-to-day
operation of a large corporation, therefore, he had to put his faith
in "dependable subordinates," which he had done, and therefore
could not be found criminally liable.69
As in Dotterweich, the Court upheld the conviction by
recognizing that a corporate officer's "act, default, or omission"
could be the basis for criminal liability.70 The Court cited to a
number of lower court cases that recognized a vested duty in
corporate officers to oversee and manage and to "devise whatever
measures are necessary to ensure compliance with the Act," and
that the law imposed not only a duty to seek out and remedy
violations, but to actively prevent them from occurring.7 '
The Court presciently noted that Park'sholding, in isolation,
could support a finding of guilt "predicated solely on [the
defendant's] corporate position," implicitly acknowledging that
status-based offenses are per se unconstitutional and anticipating
mens rea challenges that were to come in future public welfare
4
65
66
67
68
Id.
!d.
Id. at 662.
Id. at n.6.
Id. at 664.
69 Park, 421 U.S.
70 Id. at 670.
7
1 Id.
at 672.
at 664.
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RESPONSIBLE CORPORATE OFFICERS
645
statutes. v2 However, the Court focused on Park's duty with regard
to the corporation and the public at large, noting the prosecution's
closing:
Mr. Park was responsible for seeing that sanitation
was taken care of, and he had a system set up that
was supposed to do that. This system didn't work. It
didn't work three times. At some point in time, Mr.
Park has to be held responsible for the fact that his
system isn't working ....
The Court went on to state that:
the Government establishes a prima facie case when
it introduces evidence sufficient to warrant a finding
by the trier of the facts that the defendant had, by
reason of his position in the corporation,
responsibility and authority either to prevent in the
first instance, or promptly to correct, the violation
complained of, and that he failed to do so. The failure
thus to fulfill the duty imposed by the interaction of
the corporate agent's authority and the statute
furnishes a sufficient causal link. The considerations
which prompted the imposition of this duty, and the
scope of the duty, provide the measure of
culpability.7 4
Park strongly establishes that the responsible corporate officer
provision is based on a duty created by the statute, and that
knowledge of ongoing violations, and the failure to act on that
knowledge, is strongly indicative of culpability. Also important
in future cases was that the Court implicitly recognized
"'powerless[ness]' to prevent" the violation as an affirmative
defense.75
72
Id. at 674.
Id. at 675 n.16.
74
Id. at 673-74.
71 Park,
421 U.S. at 673 (citation omitted).
73
646
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C. Two Uses of the Responsible CorporateOfficer Doctrine
Dotterweich and Park support two possible uses of the RCO
doctrine. The first of these is that the RCO doctrine creates an
affirmative duty for the corporate officer to act, with the statute as
the source of the duty.76 The breach or omission to fulfill that duty
flowing from a statutory obligation acts as a basis for either tort or
criminal liability-a proposition firmly established in state and
federal law.77 RCOs who are "responsible" under the statute have
a duty to seek out and prevent those violations over which they
have responsibility.7
A variation of the statute as the source of the duty is that the
duty is imposed because of the officer's status as an RCO.79
However, this approach is far less defensible because the Supreme
Court has rejected the idea of status-based crimes.8 0 The second
approach is that the RCO doctrine imposes either strict liability on
the RCO, or that it lowers the government's evidentiary burden by
presuming mens rea.8 '
76
SusAN F. MANDIBERG & SUSAN L. SMITH, CRIMES AGAINST THE ENVIRONMENT,
§ 8-2(b)(3)(i) (Michie 1997).
" See id. § 3-3(a) n.25 (citing United States v. Washington Power Co., 793 F.2d
1079, 1082 (9th Cir. 1985)); Carolene Products Co. v. United States, 140 F.2d 61,
66 (4th Cir. 1944).
There is ample authority in support of the principle that the
directing heads of a corporation which is engaged in an unlawful
business may be held criminally liable for the acts of
subordinates done in the normal course of business, regardless
of whether or not these directing heads personally supervised
the particular acts done or were personally present at the time
and place of the commission of these acts.
Id.
CaroleneProducts, 140 F.2d at 66.
supra note 76, § 3-3(a) n.28 (citing Papachristou v. City
of Jacksonville, 405 U.S. 156, 170 (1972) (holding statute incriminating
"vagrancy" was unconstitutionally vague) and Robinson v. California, 370 U.S.
660, 666-67 (1962) (reversing conviction for status as "drug addict")).
80
Id.
78
79
MANDIBERG & SMITH,
81 Id.
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RESPONSIBLE CORPORATE OFFICERS
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D. EnvironmentalStatutes as Public Welfare Statutes
CAA, CWA, and other environmental statutes contain a mens
rea requirement of "knowingly" in most instances, unlike FDCA.s2
Also, unlike the misdemeanor provisions contained in FDCA,
environmental statutes contain felony provisions.8 3 An early
question in interpreting the RCO provision is whether such
statutes could be construed as public welfare statues. With the
notable exception of the Fifth Circuit, 4 the courts offered an early
clarification that, in fact, they were.8 ' This classification has added
See generally 42 U.S.C. § 7413(c)(2) (2000).
Any person who knowingly (A) makes any false material
statement, representation, or certification in, or omits material
information from, or knowingly alters, conceals, or fails to file or
maintain any notice, application, record, report, plan, or other
document required pursuant to this chapter to be either filed or
maintained (whether with respect to the requirements imposed
by the Administrator or by a State); (B) fails to notify or report
as required under this chapter; or (C) falsifies, tampers with,
renders inaccurate, or fails to install any monitoring device or
method required to be maintained or followed under this
chapter ....
Id.
83 See, e.g., 42 U.S.C. § 7413(c)(1) (2000) (providing for felony penalties for
knowing violations).
4 United States v. Ahmad, 101
F.3d 386 (5th Cir. 1996). This decision "is widely
considered aberrational." Thomas Richard Uiselt, What a CriminalNeeds to
Know UnderSection 309(c)(2) ofthe Clean WaterAct: How FarDoes "Knowingly"
Travel?, 8 ENVTL. LAw 303, 331 (2002).
85 United States v. Weintraub held that the government satisfies the knowledge
element for purposes of a conviction under the Clean Air Act if it proves that
"the defendant knew that the substance involved in the alleged violations was
asbestos." 273 F.3d 139, 151 (2d Cir. 2001). Accord United States v. Hunter, 193
F.R.D. 62 (N.D.N.Y. 2000); United States v. Weitzenhoff, 35 F.3d 1275, 1279 (9th
Cir. 1993) ("[Plublic welfare offenses are not to be construed to require proof that
the defendant knew he was violating the law in the absence of clear evidence of
contrary congressional intent."). Staples v. United States is instructive as the
Supreme Court explains the analysis of what constitutes a public welfare
offense-knowledge that a reasonable person would know that the substance or
product is the subject of regulation. 511 U.S. 600, 618 (1994). Except for the
Fifth Circuit inAhmad, courts have generally agreed that violations of CAA and
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WM. & MARY ENVTL. L. & POLY REV.
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importance as courts have used it to uniformly reject a specific
intent requirement in various environmental laws' criminal
provisions. 86 That is, the government is not required to prove that
the violator knew that his conduct violated the law, for example,
that a permit was required, or the violator knew the exact
conditions of the permit were violated.8" The rationale for not
requiring specific intent is the set forth in United States v.
InternationalMinerals & Chemical Corp., and is based on a high
likelihood that the violator knows that the material with which he
or she is dealing is regulated.8 8 The general intent construction
fills an important regulatory function by lowering the
government's burden in prosecuting criminal cases. The courts
have upheld related challenges to environmental statutes against
void for vagueness challenges under the Rule of Lenity.8 9
other environmental statutes are public welfare statutes and therefore not
specific intent crimes. In other words, no showing is necessary that the violator
was aware that he or she was breaking the law, supported by the maxim that
ignorance of the law is not a defense. Courts have generally followed
Weitzenhoff. See, e.g., United States v. Phillips, Nos. 02-30035 & 02-30046, 2004
WL 193258 (9th Cir. (Mont.) Jan. 30, 2004); United States v. Fiorillo, 186 F.3d
1136, 1155-56 (9th Cir. 1999); United States v. Hopkins, 53 F.3d 533, 540 (2d
Cir. 1995). Phillips,as earlier cases, rejected what it construed as a due process
argument that CWA required a mental state of willfulness to be a violation.
Interestingly, the court noted that no finding of aquatic harm was necessary to
find a criminal violation-such matters were properly left to sentencing
considerations. Phillips,at *2; see also United States v. Goldsmith, 978 F.2d 643,
645 (11th Cir. 1992) (holding that the government need only prove the defendant
had knowledge of the general hazardous character of the materials in order to
be found liable).
86 See generally supra note 85 and accompanying text (explaining courts'
construing of so-called public welfare offenses).
87 See United States v. Kelley Technical Coatings, Inc., 157 F.3d 432, 439
n.3
(6th Cir. 1998).
88 402 U.S. 558, 565 (1971) ("Where . . . dangerous
or deleterious devices or
products or obnoxious waste materials are involved, the probability of regulation
is so great that anyone who is aware that he is in possession of them or dealing
with them must be presumed to be aware of the regulation.").
89 See Kelley, 157 F.3d at 439 n.3.
Defendants contend that RCRA is "gravely ambiguous" and
requires application of the rule of lenity and an interpretation
2005]
E.
RESPONSIBLE CORPORATE OFFICERS
649
Early Fears: The Responsible Corporate Officer Doctrine
Imposes Strict Liability
The addition of the RCO provision in CAA led to panic that
with the upgrade of criminal penalties to felonies coupled with
increasingly aggressive enforcement of environmental violations
by EPA and DOJ,9 ° environmental violators would be facing strict
of the statute that requires proof of knowledge of illegality.
Under the rule of lenity "an ambiguous criminal statute is to be
construed in favor of the accused. . . . This maxim of
construction, however, is not lightly applied. It is inapplicable
unless there is a "grievous ambiguity or uncertainty" in the
statute. There is no such grievous ambiguity in RCRA, as
demonstrated by the analysis . . . Accordingly, we reject
Defendants' argument for application of the rule of lenity.
Id. (citations omitted).
90 Prosecutions for environmental crimes rise every year, with increasingly
longer prison sentences and higher monetary penalties.
In fact, since the beginning of 1983 until December 13, 1995, the
Department of Justice... has recorded environmental criminal
indictments against 1,674 corporate and individual defendants
and 1,176 guilty pleas and convictions. Recorded as of
September 29, 1995, nearly $309 million in criminal penalties
were assessed (this number includes federal and state
restitutions and known costs for remediation) and 517 years of
imprisonment imposed (374 of which account for actual
confinement).
J.
Bellew & Daniel T. Surtz, Criminal Enforcement Of Environmental
Sean
Laws:A CorporateGuide To Avoiding Liability, 8 VILL. ENVTL. L.J. 205,207 n.12
(1997). Some believed that other agencies would follow EPA in its increasingly
aggressive policy of enforcing criminal provisions. See, e.g., John C. Coffee, Jr.,
Does "Unlawful"Mean "Criminal"?:Reflections on the DisappearingTort / Crime
Distinction in American Law, 71 B.U. L. REV. 193, 217-18 (1991).
The Environmental Crimes Section ("ECS") of DOJ in 2003 did not reveal
its enforcement policies, and would not answer questions about why the
responsible corporate officer provision is not used more often. The refusal may
also have been because the ECS was sharply criticized in the 1990s for
mismanagement and incompetence.
Despite its apparent numerical success, the Justice
Department's criminal-enforcement record is plagued by
political controversy. Spearheaded by Representative John
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[Vol. 29:633
liability for their crimes. 9 '
Dingell, whose Subcommittee on Investigations and Oversight
of the House Energy and Commerce Committee held extensive
hearings in 1992 and 1993, critics challenged the rigor of the
criminal-enforcement program by questioning the Department's
judgment in declining to prosecute seemingly strong cases
(sometimes over strenuous objections from line prosecutors); its
apparently deferential treatment of powerful corporations and
their executives; its holding of closed-door meetings with
defense lawyers without informing EPA officials or the United
States Attorney's office; and its "ready agreement to trivial
financial penalties in cases involving serious and long-standing
environmental violations.
Brickey, Crossroads, supra note 13, at 496 (quoting Richard J. Lazarus,
AssimilatingEnvironmentalProtectioninto Legal Rules and the Problem with
Environmental Crime, 27 Loy. L.A. L. REV. 867, 874 (1994) (footnotes omitted).
9"See, e.g., Peter M. Gillon & Steven L. Humphreys, CorporateOfficer Liability
Under Clean Air Act May Create Disincentives, 6 No. 5 INSIDE LITIG. 6 (1992);
Bellew & Surtz, supra note 90, at 218.
The [RCO] doctrine is a useful tool in EPA's campaign against
corporate violators. The doctrine circumvents the knowledge
requirement of environmental statutes by imposing vicarious
criminal liability upon CEOs for the environmental violations of
their subordinates. Although this approach seems to be a
violation of the constitutional right to due process, the apparent
need to remedy environmental pollution appears to outweigh
the constitutional rights of corporations and their officers.
Id.; see also Brenda S. Hustis & John Y. Gotanda, The Responsible Corporate
Officer: DesignatedFelon or Legal Fiction?,25 LOy. U. CHI. L.J. 169, 170 (1994)
("Such a sweeping application of the RCO doctrine could result in felony-level
criminal liability being imposed against a corporate officer for the environmental
crime of a subordinate even when the officer had no knowledge of the illegal
activity, thus making the officer a 'designated felon.'"); Steven M. Morgan &
Allison K. Obermann, Perils of the Profession:Responsible Corporate Officer
Doctrine May Facilitate a Dramatic Increase in Criminal Prosecutions of
Environmental Offenders, 45 Sw. L.J. 1199, 1200 (1991) ("The labyrinth of
regulation in this area, the persistent legal standard of strict liability in many
laws, the vast array of reporting requirements, and the lack of privilege with
regard to most environmental information, all combine to make the defense of
a criminal environmental charge a difficult endeavor."); Michael S. Elder, The
CriminalProvisionsof the Clean Air Act Amendments of 1990: A Continuation
of the Trend Toward Criminalizationof EnvironmentalViolations, 3 FORDHAM
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RESPONSIBLE CORPORATE OFFICERS
651
An alternate concern was the perception that innocent
nonculpable corporate officials would be jailed for the vicarious
liability of their employees, or be held strictly liable based solely
on their status as corporate officers.92 One commentator stated
plainly that the RCO doctrine was simply applying strict liability.93
In fact, the Justice Department attempted to do just that, and
used reasoning in Dotterweich and Park to reduce or eliminate
mens rea in prosecuting environmental crimes. Keith Onsdorff, a
former Director in the Office of Criminal Enforcement at EPA, coauthored an early influential article 94 in which he accused DOJ of
attempting to circumvent RCRA's "slender" knowledge
requirement by using the RCO doctrine to hold corporate officers
vicariously, or strictly liable for the actions of their employees.95
Onsdorffs and others' fears proved to be unfounded--despite DOJ's
attempts, the courts roundly rejected the application of either
strict liability or a lowered mens 96rea requirement in early
interpretations of the RCO provision.
F.
Early Cases: From Frezzo Brothers to Brittain
1.
United States v. Frezzo Brothers, Inc.97
The RCO doctrine was used in a prosecution under CWA in
Frezzo Brothers.9" Although frequently cited as supporting the
ENVTL. L. REP. 141, 162 n.3 (1992). "Recent court decisions have 'reduced or
eliminated the role of mens rea' in environmental cases by applying the
responsible corporate official doctrine .... The practical effect of these decisions
...is that 'the traditional public welfare offense has now been coupled with
felony level penalties.'" Id.
92 Bellew & Surtz, supra note 90, at 217-18.
93Id.
" Keith A. Onsdorff & James M. Mesnard, The Responsible Corporate Officer
Doctrine in RCRA CriminalEnforcement: What You Don't Know Can Hurt You,
22
Envtl. L. Rep. (Envtl. L. Inst.) 10,099, 10,102 (1992).
9
5
/d.
See infra Part II.F.3-5 for a discussion of MacDonald & Watson, White, and
Baytank.
97 602 F.2d 1123 (3d Cir. 1979).
96
98
Id. at 1130 n.11.
WM. & MARY ENVTL. L. & POLY REV.
652
[Vol. 29:633
removal of the mens rea requirement, Frezzo Brothers has more
historical value, and is in fact uninstructive on the application of
the RCO doctrine. The Frezzos, Guido and James, were convicted
of negligently or willfully discharging manure and compost from
a holding tank into waterways of the United States in violation of
CWA. 99 They appealed in part, arguing that they could not be
prosecuted as individuals because the indictment charged them as
corporate officers, and the jury instructions failed to mention this
fact.' 0 The court made short shrift of the RCO doctrine, noting
briefly in a footnote and in dicta that the brothers could be found
guilty as individuals when the indictment charged them with
acting as corporate officers.' 0 ' What was true was that there was
considerable evidence that the Frezzos had actual knowledge of
their illegal acts.
2.
United States v. Johnson & Towers, Inc.1°2
Johnson & Towers is also valuable as a historical reference.
What is notable about the case is that the RCO doctrine was
mentioned in a RCRA violation, and RCRA, unlike CAA and CWA,
does not contain an RCO provision. The court held that knowledge,
including knowledge of the offense, "may be inferred by the jury as
to those individuals who hold the requisite responsible positions
with the corporate defendant."' 3 Another, more recent, case,
United States v. Self, was also decided on similar grounds. The Self
99
33 U.S.C. § 1311 (2000).
100
Frezzo Brothers, 602 F.2d at 1130 n.11.
101 The extent of the court's discussion was:
Defendants contend that the trial judge improperly instructed
the jury that they could be found guilty as individuals when the
indictment charged them with acting as corporate officers. The
Government argued the case on the "responsible corporate
officer doctrine" recognized by the United States Supreme Court
in United States v. Park and United States v. Dotterweich.We
have examined the judge's charge and we perceive no error in
the instruction to the jury on this theory.
Id. at n. 11 (citations omitted).
102
741 F.2d 662 (3d Cir. 1984).
0
1 3 Id. at
670.
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RESPONSIBLE CORPORATE OFFICERS
653
court stated in part: "Thus, while knowledge of prior illegal activity
is not conclusive as to whether a defendant possessed the requisite
knowledge of later illegal activity, it most certainly provides
from
circumstantial evidence of the defendant's later knowledge
10 4
which the jury may draw the necessary inference."
Johnson & Towers recognized a concept that involved mens
rea, but not strict liability or a lowered mens rea requirement-that a corporate officer's position could be used as
circumstantial evidence of knowledge of a violation.
3.
United States v. MacDonald & Watson Waste Oil Co. 0 '
Another early case regarding the imposition of strict liability
on corporate officers was MacDonald & Watson.'° One of the
defendants, Eugene D'Allesandro, was charged with "knowingly"
accepting hazardous waste containing toluene and soil
contaminated with toluene without a permit in violation of
RCRA 107 on two separate occasions in 1986. At trial, the prosecution presented evidence that D'Allesandro was not simply the
president but a "'hands-on' manager" of a small corporation, with
08
detailed knowledge of the day-to-day activities in the plant.
D'Allesandro acknowledged that he had, on other occasions,
accepted such shipments of contaminated waste that were outside
the scope of his permit. 109 However, during the prosecution's
closing arguments, the prosecution conceded that the government
had "no direct evidence Eugene D'Allesandro ... actually knew
that [those exact] shipments were coming in.""' To prove intent,
the court, at the prosecution's request, instructed the jury that
United States v. Self, 2 F.3d 1071, 1088 (10th Cir. 1993).
933 F.2d 35 (1st Cir. 1991).
106Id.
107 See 42 U.S.C. § 6928(d)(1) (2000) (penalizing "[a]ny person who (1) knowingly
transports or causes to be transported any hazardous waste identified or listed
under this subchapter to a facility which does not have a permit....") (emphasis
added).
0
104
105
O MacDonald& Watson, 933 F.2d at 50.
9 Id. at 51.
10
110 Id.
at 51 n.13 (omission in original).
654
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[Vol. 29:633
they could find that the government satisfied the "knowing"
requirement based on D'Allesandro's position as an RCO, if the
following were met: that he was a corporate officer, not merely an
employee, that he had direct responsibility for the illegal activities,
that the government proved that he had a responsibility to
supervise the activities in question, and that he had "known111or
believed that the illegal activity of the type alleged occurred."
At the district court, the prosecution tried to establish the
knowledge requirement based solely on D'Allesandro's status as a
corporate officer. However, the First Circuit Court of Appeals
reversed the convictions, finding the instructions to be an error of
law.112 Parkand Dotterweichwere distinguishable, the court found,
because RCRA, unlike FDCA, explicitly required a mental state of
"knowingly;" this intent requirement could not therefore be met
solely through a showing that D'Allesandro was a corporate
officer-there was no demonstration of actual awareness, which
was what the statute required." 3 The scienter requirement
assumed added importance, the First Circuit found, not simply
because congressional intent was clear, but also because the
violation involved meaningful time in prison, from five years for
the first offense, to ten years for the second." 4 Although some
courts have supported the idea that the misdemeanor/felony
distinction would have no bearing on their decision about a mens
rea requirement, 5 MacDonald & Watson clearly establishes that
it does.
116
United States v. White
4.
In United States v. White, the district court rejected a theory
of respondeat superior, which would have expanded the RCO
1111d.
112 Id.
113
at 51.
Id.at 51-52.
114 MacDonald &
Watson, 933 F.3d at 51-52.
"' See, e.g., United States v. Cattle King Packing Co., 793 F.2d 232, 240 (10th
Cir. 1986) (stating that "[t] here is nothing in the Park decision limiting its scope
to misdemeanors").
116 766 F. Supp. 873 (E.D. Wash. 1991).
2005]
RESPONSIBLE CORPORATE OFFICERS
655
doctrine beyond strict liability." 7 In White, the United States
charged one of the defendants, Steven Steed, in a Bill of
Particulars as an RCO."' According to the government's theory,
Steed was charged with constructive knowledge of his employees'
actions-as the corporate officer in charge of environmental safety
he therefore either had knowledge of the violations, or should have
known the violations had occurred." 9 The government tried to
extend the doctrine of respondeat superior to include finding
vicarious criminal liability through the actions of Steed's
employees.
But again, as in MacDonald& Watson, 2 ° the court refused to
accept that the RCO doctrine could allow conviction without the
requisite intent required by RCRA. Congressional intent was clear:
the "knowing" must be proven-it was not equal to the fact that
the defendant "should have known." 2 '
5.
22
United States v. Baytank, Inc.1
Onsdorff and Mesnard claim that in Baytank, the First Circuit
Court of Appeals implicitly applied what MacDonald & Watson
found to be impermissible: that the knowledge of a RCRA violation
could be inferred from the defendant's position as a corporate
officer alone.' 23 Similarly, however, the evidence in Baytank was
quite powerful beyond the defendants' position that they possessed
actual knowledge of the violations, and that their positions as
RCOs were simply additional circumstantial proof. Two of the
defendants were high-ranking officers. Johnsen, as Operations
Manager, "had direct responsibility for most of the facility's day-today operations, including the filing of environmental compliance
forms."' 24 Nordberg, the Executive Vice President, submitted
117 id.
118 Id.
at 894.
' 19 Id. at 895.
120 933 F.2d 35 (1st Cir. 1991).
121 White, 766 F.Supp. At 895.
122 934 F.2d 599 (5th Cir. 1991).
123 Onsdorff& Mesnard, supra note 94, at 10,103-04.
12 4
Id. at 616-17.
WM. & MARY ENVTL. L. & POLY REV.
656
[Vol. 29:633
permit applications to EPA. Testimony revealed that both had
intimate knowledge of the facility and regularly dealt with
thousands of gallons of illegally stored hazardous wastes.125
6.
126
United States v. Brittain
MacDonald & Watson, White, and Baytank made clear that
the courts would not impute knowledge to a corporate officer based
solely on status. All courts have rejected such an
approach-currently there is no strict liability attached to the
environmental statutes, nor will there likely be. 127 A later case,
United States v. Brittain,is occasionally cited as authority to the
contrary, but does not support the courts' adoption of an altered
mens rea for RCOs, except in dicta, and where the facts128of the case
clearly indicate actual knowledge and actual liability.
Brittain was convicted of eighteen counts of falsely reporting
material facts to a government agency, and two misdemeanor
counts of discharging pollutants into the waters of the United
States in violation of CWA.'29 Brittain had argued that his
conviction must be reversed based on insufficient evidence because
the government failed to link the discharges to his willful or
negligent conduct, claiming that the only evidence linking his
knowledge of the discharges was based on his position in the
company as an RCO. 3 ° The court commented that "a 'responsible
corporate officer,' to be held criminally liable, would not have to
'willfully or negligently' cause a permit violation. Instead, the
willfulness or negligence of the actor would be imputed to him by
virtue of his position of responsibility.,13'
Brittain seems to strongly support the application of either a
theory of respondeat superior or strict liability. Again, however, it
125Id.
126
127
931 F.2d 1413 (10th Cir. 1991).
See generally supra Part II.F.2-3, 5 (discussing MacDonald & Watson,
& Towers, and Baytank).
Johnson
12
" Brittain,931 F.2d at 1414.
at 1414; see 33 U.S.C. §§ 1311(a) & (c)(1) (2000).
Brittain,931 F.2d at 1420.
131 Id. at 1419 (emphasis added).
129 Id.
13 0
2005]
RESPONSIBLE CORPORATE OFFICERS
657
is important to note that Brittain's consideration of the RCO
doctrine was in obiter dictum-there was considerable evidence
linking Brittain to the willful discharges, and the conviction was
based on actual knowledge, not on his position as a corporate
officer. 132 Brittain was aware that the plant had discharged
and he told the
sewage, he had personally observed the discharges,
1 33
EPA.
to
these
report
not
to
supervisor
plant
Brittain does add to the RCO doctrine in one respect. In
considering the construction of the provision (noting that CWA did
not define the term, and that the "legislative history is silent
the court found that the
regarding Congress's intention")'
liability, not, as
addition of RCOs was intended to expand criminal
35
Brittain had argued, limit it to permit holders.1
Brittain demonstrates that critics were wrong with two
predictions. The RCO doctrine has not "been refined to its current
state as" as Onsdorff and Nesnard claimed.'36 It had not then nor
has it now. Second, the fear that the doctrine would be widely used
to convict non-culpable parties, that it would impose either strict
liability or a modified and lessened mens rea requirement, has not
come to pass. The courts' rejection of a lowered mens rea under the
RCO doctrine has been so complete, that one scholar argued that
RCO is a myth, simply finding its basis in dicta in a few
opinions.'37 This answers partly the question why the provision is
not used more frequently.
G. Statute as the Source of Duty: Iverson, Ming Hong and the
Evolution of the RCO Doctrine
Despite the rejection of the use of the RCO doctrine to modify
or eliminate the mens rea requirement, courts have accepted the
132
133
Id. at 1420.
Id.
134
Id. at 1419.
135
Id. at 1418.
Onsdorff & Mesnard, supra note 94, at 10,101.
13' Richard G. Singer, The Myth of the Doctrine of the Responsible Corporate
Officer, 6 Toxics L. Rep. (BNA) 1378 (Apr. 8, 1992).
136
658
WM. & MARY ENVTL. L. & POLY REV.
[Vol. 29:633
RCO provision as one where the statute creates a duty when a
corporate officer stands in a responsible relation to a public
danger. This theory is strongly supported in traditional criminal
law and in Dotterweich and Park.What follows is a consideration
of some of these cases, and how they have refined how the doctrine
is used.
138
United States v. Iverson
1.
Iverson was the president and chairman of the board of CH20,
a company that blended chemicals to form various products such
as acid cleaners and heavy-duty alkaline-based products. The
blending process involved mixing in drums. The drums collected a
waste residue that required cleaning; the cleaning produced
wastewater with a high toxic metal content. The city sewer
authority informed Iverson that the metal content was too high to
accept under their permit, and legal disposal of the wastewater
was expensive-or at least more expensive than dumping it
illegally.'39 Beginning around 1985, Iverson personally ordered
employees of CH20 to discharge the wastewater in three places, on
the plant's property, through a sewer drain at an apartment
complex that defendant owned, and through a sewer drain at
defendant's home. 4 ° The original plant did not have sewer access.
Later, though, in 1992, CH20 purchased another facility that did
have sewer access, which Iverson also employed to dispose of the
wastewater. 4 ' Testimony revealed that Iverson was present during
at least some of the discharges, where he could both see the
discharges and smell the chemical odor.'42
The district court instructed the jury that it could find Iverson
guilty if he had knowledge that employees were discharging the
wastewater, that he had the authority and the capacity to prevent
138
162 F.3d 1015 (9th Cir. 1998).
139
Id. at 1018.
14 0 Id.
141 Id.
142 Id. at 1019.
20051
RESPONSIBLE CORPORATE OFFICERS
659
the discharges, and that he failed to prevent
the on-going
1 43
system.
sewer
the
to
pollutants
of
discharges
Iverson had argued that he could be held liable only if he
actually exercised control of the activity, or if had the express
corporate duty to do so.'4 On appeal, the Ninth Circuit Court of
Appeals rejected Iverson's narrow interpretation of RCO doctrine,
holding that
under the CWA, a person is a "responsible corporate
officer" if the person has authority to exercise control
over the corporation's activity that is causing the
discharges. There is no requirement that the officer
in fact exercise such authority or that the corporation
expressly 5 vest a duty in the officer to oversee the
14
activity.
Iverson was a direct application of Park as a violation of a
statutory duty to prevent violations, although in this case it
seemed hardly necessary, as the testimony established that
Iverson had actually ordered the discharges. However, Iverson is
indicative of how the RCO would have the responsibility to report
violations, especially when the knowledge is firsthand.
2.
1 46
United States v. Ming Hong
Ming Hong adds an important detail that would otherwise
limit application of the RCO doctrine. The case held that an officer
need not be officially designated as one to be held liable. In Ming
Hong, employees of the Avion Corporation discharged untreated
wastewater into the Richmond, Virginia sewer system in violation
of its CWA permit. Ming Hong had personally bought one filter
designed as the final step in a longer treatment system, though not
143 Id.at 1022.
144Iverson, 162 F.3d at 1022.
145 Id. at 1025 (emphasis added).
14 242 F.3d 528, 531 (4th Cir. 2001) (holding no formal designation required to
establish as individual as an RCO).
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as a complete filter system. He knew this and was also in charge
of the company's finances. He had explicitly refused to authorize
payment for filters, he knew that the filtration Avion had was
inadequate under their permit conditions, and was regularly at the
site when illegal discharges occurred.'47 Despite the fact that Ming
Hong went to "great lengths" to shield his connection with Avion
in an obvious attempt to avoid culpability, 4 ' the Fourth Circuit
Court of Appeals found that he was the de facto owner, that he
exercised substantial control over the discharges and was therefore
criminally liable.'49
Ming argued that the government was required to prove that
he was an RCO because the information charged him as such, and
that even if no proof was required, the United States "failed to
prove that he exerted sufficient control over the operations of [the
corporation] to be held responsible for the improper discharges" 5 °
or that he had "authority to prevent the illegal discharges" that
were the basis of the charges.' 5 ' The court found that "[tihe
gravamen of liability as a[n] RCO" 52 was not a formal designation
as such, but, relying on the principles articulated in Park,whether
the defendant "bore such a [responsible] relationship" to the
violations 53 where it was "appropriate to hold him criminally
liable.' 54
Ming Hong is perhaps the clearest application of the statute
creating a duty. Ming was very clearly aware of the regulations
requiring the permit, and he had the means and the authority to
comply with its terms.
147 Id. at 530.
1481 d.at 532.
149Id.at 531 n.2.
' 50 Id.at 531.
151 Id. at
532.
152 Ming Hong, 242
F.3d. at 531.
United States v. Park, 421 U.S. 658, 672 (1975).
154 Ming Hong, 242 F.3d at 531.
153
2005]
H.
RESPONSIBLE CORPORATE OFFICERS
661
CircumstantialProofof Mens
Responsible CorporateOfficers:
55
Rea: United States v. Self'
Although rejecting the lowered mens rea requirement, the
responsible corporate officer doctrine can be used as circumstantial
or supplemental evidence to establish guilty knowledge. Self
argued that he was convicted based on his status as an RCO, like
the defendant in MacDonald& Watson.'56 The Tenth Circuit Court
of Appeals upheld the conviction, finding an important distinction:
the error in MacDonald& Watson was erroneous jury instructions,
in which the court held that it was impermissible to infer
knowledge based on status as an RCO alone.' 57 Self, in comparison,
dealt with sufficiency of the evidence. 5 ' MacDonald & Watson
acknowledged what is common in criminal cases, that mens rea
may be inferred from circumstantial evidence-hereby using the
RCO doctrine.' 5 9 Still, at no time did the court believe that the
mens rea was lessened simply by virtue of Self's position. The court
held that the evidence was sufficient; the defendant had knowledge
of prior illegal storage, he had solicited shipments, and the
facility's vice-president and an employee testified that the
defendant directed storage of hazardous waste in violation of
RCRA. 160 The RCO doctrine cemented that this knowledge was not
coincidental.
I.
6
Willful Blindness: United States v. Hopkins1'
Hopkins gives some indication of how the RCO doctrine might
be used in a conscious avoidance or "willful blindness" instruction.
2 F.3d 1071 (10th Cir. 1993).
Id. at 1087.
15 7
Id. at 1087-88.
155
156
158 Id.
9Id. at 1088; see also United States v. Kelly, 167 F.3d 1176 (7th Cir. 1999)
(holding that the jury could infer knowledge of potentially hazardous properties
of waste and incur criminal liability through his responsibility for waste
handling, his frequent visits to facility, and familiarity with age, location, and
contents of storage drums).
160
Self, 2 F.3d at 1087.
161
53 F.3d 533 (2d Cir. 1995).
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"A conscious-avoidance charge is appropriate when (a) the element
of knowledge is in dispute, and (b) the evidence would permit a
rational juror to conclude beyond a reasonable doubt 'that the
defendant was aware of a high probability of the fact in dispute
and consciously avoided confirming that fact." 62 The Hopkins
court stressed that willful blindness instructions were an
appropriate means by which to argue in the alternative-that the
defendant had actual knowledge, or "if the defendant lacked such
knowledge it was only because he had studiously sought to avoid
knowing what was plain."163 In this case, Hopkins was the vice
president of Spirol, a company that manufactured zinc-plated
products. The plating process produced large amounts of toxic
wastewater, and Hopkins was responsible for monitoring the
wastewater and filing monthly discharge reports with the state's
Department of Environmental Protection. Hopkins would wait
until his subordinates presented him with reports that contained
acceptable levels. In what one can only imagine was Hopkins' best
Sergeant Schultz imitation from the 1965 to 1971 television series
"Hogan's Heroes," Hopkins would respond, "I know nothing, I hear
nothing."'" Although the RCO doctrine was not used explicitly,
Hopkins' position as vice-president, and his explicit duty to
of a factor had
monitor and file the reports might have been more
65
compelling.
less
been
the evidence of his guilt
III. THE DORMANT PROVISION
DOJ has achieved a ninety-five percent conviction rate in the
prosecution of environmental crimes.1 66 About eighty percent of
162
Id. at 542 (quoting United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir.
1993)).
163 Id.
64
1
Id.
For a discussion of the willful blindness doctrine in environmental crimes, see
Karen M. Hansen, "Knowing"EnvironmentalCrimes, 16 WM. MITCHELLL. REV.
987, 990-92 (1990).
166 Brenda S. Hustis & John Y. Gotanda, The Responsible Corporate Officer
Doctrine:DesignatedFelon or Legal Fiction?, 25 LOY. U. CHI. L.J. 169 (1994).
165
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RESPONSIBLE CORPORATE OFFICERS
663
convictions for environmental crimes involved corporate officers.'6 7
Several states have adopted similar RCO provisions in their
environmental statutes, with identical language as in CAA and
CWA, 168 yet despite the addition there is a notable absence of
criminal convictions in state cases, although many states use the
RCO doctrine as a duty-creating provision in the civil context,
following Park and Dotterweich.169 States have reached the same
results as in federal courts in rejecting strict liability.
There are no reported cases to date using the RCO provision
in a state criminal environmental case. The RCO provision seldom
plays a role in environmental criminal prosecutions involving both
state and federal law. In exploring the reasons for this, one obvious
cause may be the courts' rejection of the RCO doctrine as reducing
or modifying the mens rea requirement. Related to this may be
that the Environmental Crimes Section, which prosecutes
167
Id. at 169.
See, e.g., CONN. GEN. STAT. ANN. § 22a-44(c) (West 2003) ("Person" includes
"any responsible corporate officer.").
169 See People ex rel. Madigan v. Tang, 805 N.E.2d 243, 255 (Ill. App. 2004)
("Regardless, the responsible corporate officer doctrine requires specific
allegations of corporate responsibility with regard to the wrongful acts, rather
than just general allegations of corporate responsibility."); State v. Standard
Tank Cleaning Corp., 665 A.2d 753, 764 (N.J. Super. 1995).
Since the WPCA was designed to establish a state system for
enforcement of the provisions of the Federal Clean Water Act,
it is reasonable to construe the term "responsible corporate
168
official" . . .in conformity with the concept of "responsible
corporate officer" developed in Dotterweich and Park and
applied in Brittain.Under this view, an individual may not be
held liable for a corporation's violation of the WPCA simply
because he or she occupies the position of corporate officer or
director. Instead, there must be a showing that a corporate
officer had actual responsibility for the condition resulting in the
violation or was in a position to prevent the occurrence of the
violation but failed to do so. Stated another way, we construe
the WPCA to impose liability only upon corporate officers who
are in control of the events that result in the violation. Absent
such a showing, a corporate officer cannot be said to be
"responsible" for the violation.
Id. (citations omitted).
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environmental crimes at DOJ, has too few resources to cover the
entire country to argue a theory perceived to be vague and that has
received mixed treatment in the courts.
Yet another reason may lie in the fact that the government
can prosecute environmental crimes under a conspiracy theory and
by applying Pinkertonliability. 70 Once the underlying violation is
established, a criminal co-conspirator is liable for all the
substantive crimes committed during the course of and in the
17 1
furtherance of the conspiracy that are reasonably foreseeable.
Additionally, the government can charge an individual under any
of the appellations listed in section 302(e), which include corporate
officers, agents, and employees.' 2
Other reasons and an area of concern in the criminal
enforcement program are that prosecutors tend to react to
violations rather than actively seek them out, relying on
whistleblowers to find and investigate cases. While whistleblowers
can be a valuable resource, such reliance is not an effective way to
find and prosecute the most serious violations.7 3 Related to the
procedure of how DOJ learns of criminal violations are the
mechanics of enforcement, by ratcheting up violations from
170 Pinkerton v. United States, 328 U.S. 640 (1946).
1 United States v. Self, 2 F.3d 1071, 1088 (10th Cir.
1993) (discussingPinkerton
and stating that "a] criminal conspirator is criminally responsible for
substantive crimes of coconspirators committed during the course of and in
furtherance of the conspiracy which are reasonably foreseeable"). The Tenth
Circuit Court of Appeals found this as an alternative to liability. Id. at 1088-89
(noting that aiding and abettor liability is a further means to establish a link up
the corporate chain).
172 "Section 302(e)" refers to CAA's definitions of "individuals" at 42 U.S.C.
§
7602(e). "The term 'person' includes an individual, corporation, partnership,
association, State, municipality, political subdivision of a State, and any agency,
department, or instrumentality of the United States and any officer, agent, or
employee thereof." Id.
" Hearing, supra note 13, at 112 (testimony of Ronald A. Sarachan). Mr.
Sarachan was a former Chief of the Environmental Crimes Section at DOJ.
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RESPONSIBLE CORPORATE OFFICERS
665
administrative penalties, to civil penalties, and then finally
criminal prosecutions,174 which perhaps give RCOs the opportunity
to escape liability.
There are reasons particular to the CAA of why the RCO
doctrine is not used more often, and why there are few prosecutions under CAA generally: proving violations is notoriously
difficult, simply by the nature of the "gone with the wind"
evidence.175 Another reason for few prosecutions is that CAA allows
for an exemption for "accidents," emission violations that are not
"reasonably foreseeable," 176 even though, as one commentator
noted, these accidents frequently occur in the same factories again
and again.'77 Even when evidence of these unlawful emissions is
available, the violations under CAA are measured in days, not in
amounts or levels or toxicity, which significantly lower the dollar
amount.'78 This lack of benefit relative to cost may adversely
influence the decision to prosecute. The cumulative effect of all
these make violators difficult to target.
A.
The Dormant Provision:Is the RCO DoctrineA Benefit?
What effect does having the dormant RCO provision in the
statute have on industry? If it is unused, should it remain in the
statute, or does the RCO provision further the goals of
environmental regulation? If so, how could the legislature amend
the RCO provision to improve this function?
There is no requirement in environmental statutes that the government
pursue civil actions prior to the initiation of criminal proceedings. See United
States v. Frezzo Bros., 602 F.2d 1123, 1124 (3d Cir. 1979).
175 Hearing,supra note 13 (testimony of Ronald A. Sarachan). There have been
a number of convictions for violations of work practice standards of asbestos
removal under CAA. See, e.g., United States v. Tomlinson, 189 F.3d 476 (Table),
1999 WL 511496 (9th Cir. (Wash.) July 16, 1999); United States v. Itzkowitz, No.
96-CR-786, 1998 WL 812573 (E.D.N.Y. May 13, 1998).
174
176 Hearing,supra note
177 Id.
178 Id.
13.
666
B.
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Should the RCO Doctrine Be Used in Criminal Prosecutions?
Blurring the Line Between Tort and Criminal Law
One of the criticisms of applying the RCO doctrine in environmental criminal law is a general one-environmental criminal
statutes, as applied, do not comport with traditional criminal law
norms.' 79 The foundation of this criticism is that environmental
statutes such as CAA and CWA (and of course other environmental
statutes) overlay their criminal and civil provisions; a violation of
any one is either civil or criminal, with the mental state of
"knowingly" dividing the two.' Some provisions have "negligent"
as a mental state. 81' While the dividing line between tort and
criminal law is usually well defined in traditional law, the
argument runs that environmental law has distinctive
characteristics: an aspirational quality, a high degree of
complexity, and indeterminacy." 2 These distinctive qualities blur
the line between tortious and criminal conduct in environmental
statutes.
C. Environmental Law's Distinctive Features
Richard Lazarus, a professor at Georgetown University,
describes how three of these distinctive features of environmental
law need to be taken into consideration when making criminal
179 See
Richard J. Lazarus, Meeting the Demands ofIntegrationin the Evolution
of Environmental Law: Reforming Environmental CriminalLaw, 83 GEo. L.J.
2407, 2440-41 (1995); Coffee, Jr., supra note 90, at 213-17; David A. Barker,
Note, Environmental Crimes, ProsecutorialDiscretion,and the Civil/ Criminal
Line, 88 VA. L. REV. 1387, 1390-91 (2002).
180 See generally supra note 149.
181 U.S.C. § 7413(c)(4) (2000).
Any person who negligently releases into the ambient air any
hazardous air pollutant . . . or any extremely hazardous
substance... and who at the time negligently places another
person in imminent danger of death or serious bodily injury
shall, upon conviction, be punished by a fine under title 18 or by
imprisonment for not more than 1 year, or both.
Id.
182
Lazarus, supra note 179, at 2444-45.
2005]
RESPONSIBLE CORPORATE OFFICERS
667
environmental policy." 3 The first of these is that environmental
law is aspirational: environmental law seeks goals that it knows
are not immediately obtainable. For example, CAA sought
attainment of national ambient air quality standards by
1975-goals that have yet to be achieved even today in 2005.
Similarly, CWA had a goal of swimmable waters by 1983, and zero
discharges of pollutants into the nation's waterways by 1985.8
Environmental law also lends itself to indeterminacy-it is
evolutionary and dynamic in nature, constantly responding to
advancements in science and technology, and evolving to our
understanding of the environment itself."5 The law constantly
adapts to reflect these changes.
These constantly changing standards, and the change in
conduct they require, make the duty a corporate officer must fulfill
too indeterminate to apply criminal law, because it provides no set
guidelines by which to judge criminal behavior.8 6 And of course,
added to this indeterminacy is environmental law's inherent
complexity.1 7 It is therefore easy to engage in conduct that is
criminal without culpability.
Traditional criminal law, in comparison, is based on a fixed set
of societal norms based on a common and largely static
understanding of moral values. Rape, murder, theft, are morally
wrong, and of course have been so considered since time
immemorial. Criminal law requires readily identifiable codes of
conduct to justify the harsh sanctions of incarceration and large
monetary penalties, whereas environmental law is anything but
that, with its dynamic, changing character, highly technical
standards, and incomprehensible complexity. "[C]riminal law is
[therefore] more appropriate for redressing violations of absolute
duties, whereas tort law is better suited for redressing violations
of relative duties."8 8 The RCO doctrine of course plays into
this-at least, its perception, in that responsible corporate officers
183 Id.
See 33 U.S.C. § 1251(a)(1) (2000) (describing CWA standards for today).
Lazarus, supra note 179, at 2419.
1
6 Id. at 2431.
18
7 Id. at 2443.
184
185
88
1
Id. at 2444.
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have a duty, but what that duty is may not always be clear. When
there is no clear duty for the responsible corporate officer to fill,
and when the conduct is not clearly identifiable as criminal,
criminal enforcement, with the full "moral force" of the law behind
it, is inappropriate." 9 Further, policy makers and the legislature
have not considered these important differences in enacting
criminal provisions. 9 ° The result is that "this blurring of the
border between tort and crime predictably will result in injustice,
and ultimately will weaken the efficacy of the criminal law as an
instrument of social control,"' 9 ' evidenced by the application of a
negligence standard in some statutes. 92
D. Enforcement Policy of the Departmentof Justice
Lazarus and others argue further that the blurred line gives
prosecutors too broad a discretion in enforcement decisions, 93 and
89
Id. at 2486; see also Coffee, Jr., supra note
190 Lazarus, supra note 179, at 2454.
90.
Coffee, Jr., supra note 90, at 193. ("[T]he dominant development in
substantive federal criminal law over the last decade has been the
disappearance
of any clearly definable line between civil and criminal law.")
192 Id.
193 See Kevin A. Gaynor et al., Environmental CriminalProsecutions:
Simple
Fixes for a Flawed System, 3 VILL. ENVTL. L.J. 1, 11 (1992).
Exacerbating the lack of centralized review of environmental
criminal cases is the minimum level of culpability required for
191
a case to become a criminal case ....
Further, some of these
statutes require the government to show only negligence to
establish criminal liability. Because the threshold standard is so
low, whether a violation is treated criminally, civilly or
administratively is not necessarily made through the principled
and predictable application of the statutory scheme, but rather,
can be made on the whim of an Assistant U.S. Attorney. As a
consequence, virtually any environmental violation can be
prosecuted criminally, if an Assistant U.S. Attorney so chooses.
Id. But see Kathleen F. Brickey, The Rhetoric of Environmental Crime:
Culpability, Discretion, and Structural Reform, 4 IOwA L. REV. 115, 130-31
(1998). Brickey details how the scrutiny in the decision to prosecute
environmental crimes is very rigorous, involving many layers of review of
prosecutors, and in fact, there is no whim of any one prosecutor, as Gaynor and
others insist.
2005]
RESPONSIBLE CORPORATE OFFICERS
669
that such "ad hoc" prosecutorial decisions are subjective and
impressionistic, and cannot be relied on to promote consistency and
fairness."'
DOJ has guidelines describing how and when they will
prosecute as environmental crimes,'95 guidelines designed to
further the regulatory program by encouraging voluntary
compliance, cooperation, and adequate training. The Department's
stated policy is to seek the "highest culpable party in the corporate
organization to target for criminal violations." 9 ' While these rules
offer guidelines on how DOJ bases its decisions to prosecute
(considering factors such as the level of risk to the public, public
health impacts, whether the violation is "technical," deliberate and
blatant failures to obtain permits, false statements, and the level
of cooperation, etc.) 9 v this does little to define what kinds of
conduct or acts form the line between civil and criminal violations,
adding to a perception of arbitrariness and unfairness. While
guidelines clarify enforcement policy, as one commentator points
lies-and
out, it still begs the question of where the dividing19line
8
lines.
these
honor
to
prosecutors
trust
we
whether
194
195
Lazarus, supra note 179, at 2412, 2419, 2488.
See EPA, Memorandum, Exercise of Investigative Discretion (Jan. 12, 1994),
availableat http://www.epa.gov/compliance/resources/policies/criminal/exercise.
pdf [hereinafter Exercise of Investigative Discretion];F. Henry Habicht II, The
FederalPerspective on Environmental CriminalEnforcement: How to Remain
on the Civil Side, 17 Envtl L. Rep. (Envtl. L. Inst.) 10,478, 10,480 (1987) ("It has
been, and will continue to be, Justice Department policy to conduct environmental criminal investigations with an eye toward identifying, prosecuting, and
the highest ranking, truly responsible corporate officials.").
convicting
196 Habicht II, supra note 195 (quoting Deputy Attorney General, Aug. 8, 1998).
197 Exercise of Investigative Discretion, supra note 195; see also U.S. DOJ,
Memorandum, Factors In Decisions On Criminal Prosecutions For
Environmental Violations In the Context of Significant Voluntary Compliance
Or Disclosure Efforts By The Violator (July 1, 1991), available at http://www.
usdoj.gov/enrd/factors.htm.
198 See DONALD A. CARR, ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND
DEFENDING ENFORCEMENT ACTIONS 115 (BNA 1995).
670
E.
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Brickey's Response-The Intersection of Criminal and
EnvironmentalLaw
If the criticisms of Lazarus and others are valid, then the RCO
doctrine should not be used in the enforcement of criminal law. If
a corporate officer's duties are not clearly defined, then criminal
enforcement of a violation based on an unclear duty is
inappropriate and unfair.
However, not all critics agree with this assessment. Kathleen
Brickey has found a much closer "fit" in her evaluation of the
intersection between environmental criminal theory and traditional criminal law. She argues that environmental criminal
provisions do create clear, straightforward duties, and that there
is no unfairness in judging those knowing failures to fulfill one's
duties as criminal.'9 9 If Brickey is correct, then using the RCO
doctrine could be an important tool for ensuring corporate
compliance, as link in chain that could ensure corporate responsibility for environmental violations. 00
F.
Administrative and Substantive Environmental Crimes
Brickey's argument centers on what she believes is a mistaken
perception of environmental law is a "monolithic," uniform body.20 '
She analyses how environmental criminal enforcement is actually
applied, finding that they are an appropriate application of
traditional criminal law.20 2
See Brickey, Crossroads,supra note 13, at 518-19.
o0 The RCO doctrine could of course be extended, and in all probability should
199
be, to civil enforcements. The arguments against it are certainly not as strong
as imposition of criminal liability-where mens rea requirements are proportionately higher. See, e.g., Noel Wise, PersonalLiability PromotesResponsible
Conduct:Extending the Responsible CorporateOfficer Doctrine to FederalCivil
Enforcement Cases, 21 STAN. ENVTL. L.J. 283,321-22 (2002). Wise discusses how
the RCO's application to environmental statutes as public welfare offenses
creates a duty for which the officer should be held personally liable in tort.
20' Brickey, Crossroads,supra note 13, at 492.
202 Id.
2005]
RESPONSIBLE CORPORATE OFFICERS
671
The crux of Brickey's analysis is that she divides
environmental violations crimes into two groups-substantive and
administrative. Substantive environmental crimes are those that
involve direct harm or risk of harm to the environment. They
usually involve illegal discharges or emissions, or they risk illegal
storage in violation of RCRA.2 °3
Administrative crimes are those that interfere with the
information exchange between the government and industrymonitoring and reporting requirements. These would include
failures to properly monitor, false reporting of emissions, failures
to notify when emissions or discharges exceed legally established
limits. Permit violations are a hybrid, and can involve both
substantive and administrative violations. Failure to obtain a
permit when one would ordinarily be issued as a matter of course
would be an administrative violation, whereas the failure to obtain
a permit when one would not be granted, under any circumstances,
is a substantive violation.
When environmental law is broken down into these categories,
and evaluated in a traditional criminal law context, there is a
much closer fit between environmental and criminal law theory.
One of the most persuasive examples she offers is found in the
identical provisions in CAA and CWA which criminalize
"knowingly making a false material statement" in a reporting
document.20 4 Requiring a corporate officer to make accurate
statements is not influence by environmental law's "aspirational
qualities."2 5 Rather, this provision, and others like it involve an
unchanging, "elementary standards of conduct."20 6 This area of law
is not dynamic and evolutionary, but, as she states, is static, and
unchanging, as old as the basic tenet, "[t]hou shalt not lie."20 7
The statute thus establishes the duty is very clearly not
subject to environmental law's distinctive characteristics. She finds
that similarly, criminal violations of substantive environmental
203
204
Id. at 512.
Id. at 513.
205
Id. at 498.
206
Id. at 515.
207
Brickey, Crossroads,supra note 13, at 515.
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[Vol. 29:633
law are not inherently unfair-the application of a mens rea
requirement leads to predictable outcomes, not ones that are
unfair or that unwittingly put the innocent in jail. She identifies
the permitting process as a classic example, which creates equallyidentifiable standards of conduct and which operates as a covenant
between the government and the polluter to define the scope of
what pollution will be allowed. It cannot be seen as unfair to
prosecute those who have full notice of the agreed-upon
standard.208
United States v.Weintraub °9 illustrates Brickey's point well.
Weintraub was a Connecticut real estate developer who purchased
an office building in New Haven, which he planned to renovate
into apartment buildings. The city provided Weintraub with a
report describing considerable amounts of asbestos in the building.
The work procedures for asbestos removal fill hundreds if not
thousands of pages of the Federal Register, and contain detailed
work practice standards for removal in demolition and
construction, elaborate descriptions of when asbestos becomes
"friable," that is, when it turns to dust that poses a threat to the
public.210 Friability determinations are made using complex
applications of "Polarized Light Microscopy. ' 211 While the underlying science and policy were complex, indeterminate, and
aspirational, Weintraub was aware of asbestos in the building and
that asbestos removal required specialized, licensed removers.212
At one point, during the demolition, EPA even warned Weintraub
that his company was under investigation, but the illegal disposals
continued.213 The standard of conduct was clear, but Weintraub
chose to violate it.
2o.See
Hearing,supra note 13, at 115 ("I used to instruct new prosecutors...
when I was Chief of the Environmental Crimes Section, the conduct for which
we prosecuted people in environmental crimes cases was conduct that my thenfive-year-old daughter would have known was wrong."); United States v.
Murphy Oil USA, Inc., 143 F. Supp. 2d 1054, 1109 (W.D. Wis. 2001).
209 273 F.3d 139 (2d Cir. 2001).
210
See, e.g., National Emission Standards for Hazardous Air Pollutants; Asbestos
NESHAP Revision, 55 Fed. Reg. 48,406 (Nov. 20, 1990).
211 Weintraub, 273 F.3d at 145.
212 Id. at 142.
213 id.
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RESPONSIBLE CORPORATE OFFICERS
673
Another sample of how identifiable the standards of conduct
are in environmental regulation is found in Murphy Oil,214 which
describes a process in which the a responsible corporate officer is
required to ensure the accuracy of monitoring reports.
Under the Clean Water Act, each permittee must
establish and maintain records, install and use
monitoring equipment, sample its effluent according
to a prescribed schedule and report the results to the
permitting agency. The effluent reports, which are
submitted on standard EPA prescribed forms, are
known as Discharge Monitoring Reports. A
permittee's Discharge Monitoring Reports must be
signed by a "responsible corporate officer" or duly
authorized representative, who certifies that the
reported information was prepared by qualified
personnel under his or her direction or supervision,
and that the information is true, accurate and
complete. Accuracy is further encouraged by the
availability of criminal penalties for false
statements.2 15
G. Links to TraditionalCriminalLaw: Deterrence
Failure to fulfill a duty created by statute is the basis for
criminal and tort liability, and has longstanding and wide
acceptance by the courts. 216 The effect of the RCO doctrine can and
should be to codify a corporate officer's duty in order to ensure
greater compliance, accuracy in monitoring and reporting, and to
deter violations by ensuring corporate accountability. 2 7 If
Brickey's analysis is valid, then these duties are not abstract, but
214
143 F. Supp. 2d 1054 (W.D. Wis. 2001).
215
Id. at 1109 (citations omitted).
supra note 76, § 3-3(a).
James M. Strock, Environmental Criminal Enforcement Prioritiesfor the
216 MANDIBERG & SMITH,
217
1990s, 59 GEo. WASH. L. REV. 916 (1991) ("Environmental crime does not pay!
This is the message of the United States Environmental Protection Agency
(EPA) for the 1990s.').
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are based on static and unchanging standards of conduct.2 8 As a
former Chief of the Environmental Crimes Section once said, the
crimes prosecuted involve "conduct that my . . . five-year-old
daughter would [know] was wrong."219
The threat of criminal sanctions fills the gaps in the
regulatory system-there is strong correlation between aggressive
criminal enforcement programs and corporate decisions to
implement environmental compliance and management programs.2 2 ° Corporate executives identify possibility of criminal
sanctions as the number one reason for implementing environmental compliance programs.2"2 ' The value of this deterrence
cannot be underestimated, because there are simply not enough
inspectors to ensure detection of all violations.222
Criminal deterrence assumes another vital role when the
economic incentives to violate regulations are great. Compliance
with environmental regulations can be prohibitively expensive to
many companies, especially where the profit margin is not large.
When monetary penalties from crimes are not much greater than
compliance, polluters will risk the "prosecution lottery." 223 The
possibility ofjail time then assumes an added importance, because
jail time is one cost that cannot be passed on to consumers.
Criminal sanctions thus act to level the playing field so that fewer
will gain an economic advantage by violating the law.224 Without
criminal sanctions, industry could simply accept the monetary
penalties as a cost of doing business, which could then be passed
on to consumers. Criminal enforcement acts as a great incentive to
comply, and it does not put those who do comply at a competitive
disadvantage.
218
219
Brickey, Crossroads,supra note 13, at 515.
Hearing,supra note 13, at 115 (testimony of Ronald A. Sarachan).
220 id.
221 id.
222
Id.
223
Brickey, Crossroads,supra note 13, at 509.
224 Id.
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Deterrence Value: InadequateMonitoring
Deterrence has added importance in the context of CAA. EPA
inspection of environmental standards is spread thinly throughout
the country.225 In recent testimony before the U.S. Senate, Eric
Schaeffer, former Director of EPA's Office of Regulatory
Enforcement reported that CAA emissions were notoriously
difficult to monitor accurately, and that EPA will assume
compliance, when in fact, there is none.226 EPA inspections of
emission sources are limited. Often, EPA must rely on periodic
samplings of thousands of sites that might occur as little as every
three or four years.227 A GAO report found that "emission factors
22 These include
were often wrong by an order of magnitude.""
carcinogens from refineries that can often be five times higher
than the reported industry estimates.229
Another problem peculiar to CAA is the nature of so-called
"fugitive emissions." These are leaks from refineries of smog
forming volatile organic compounds from valves, flanges, and
pumps, and are more difficult to monitor than the smokestack
emissions. Monitoring of these emissions can be pure guesswork.23 °
CAA policy can then based on data that do not "accurately reflect
reality" when based on inaccurate reporting.
I.
Link to Culpability
Another important link between traditional criminal law,
environmental criminal law, and the RCO doctrine is one of
See, e.g., Press Release, EPA, EPA Announces Unprecedented First "Draft
Report On The Environment"; Report Shows Real Progress; Helps Identify Areas
Where There Is "More To Be Done" (June 23, 2003), availableat http://yosemite.
epa.gov/opa/admpress.nsfO/Of5be335029e763d85256d4eOO6523fa?Open
Document.
226 Hearing, supra note 13 (testimony of Eric Schaeffer). Eric Schaeffer is a
former Director of EPA's Office of Regulatory Enforcement. Id.
225
227Id.
228 id.
229 id.
230 Id.
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culpability-traditional criminal law punishes only culpable
conduct.231 Culpability is
[the societal judgment that the actor is not only
responsible for harmful conduct, but is blameworthy
as well, is an act of legal line-drawing. This is the
pivotal juncture where the law of tort and the
criminal law diverge, and what were once deemed
mere bad acts are transformed into crimes.232
It is a misperception to see environmental violations as mere
economic crimes, or to ignore them, or to see minimum culpability
in a violator's behavior.233 Violators do not only harm the economy
by gaining an unfair competitive advantage. To a much greater
degree than traditional crimes, criminal violations of environmental laws have the ability to affect large populations, as the
incidents at Bhopal and the Prince William Sound illustrate.
Although these two incidents resulted in immediate and palpable
harms, and were scrutinized by the public, more often environmental violations result in enduring and continuing harms-such
as the residue of wastes and slow and persistent leaks-and the
harm is hidden though the risks continue over time.234
231
Brickey, Crossroads,supra note 13, at 606.
232
Id. at 506.
233
See, e.g., Kathleen F. Brickey, Wetlands Reform and the Criminal
Enforcement Record: A Cautionary Tale, 76 WASH. U. L.Q. 71 (1998).
Conservative public interest groups helped individuals prosecuted for violating
the wetlands provisions in CWA; the widespread delusion was that these were
hapless victims of technical violations, and unfairly targeted by the Justice
Department. Even a cursory look at one case demonstrated this was untrue: one
of the defendants, Pozgai, had been warned by three different contractors, an
Army Corps of Engineers biologist, and by the Corps in two cease and desist
orders as well as a temporary restraining order, not to fill in the property-he
did so and was held in contempt. Id. at 81 (noting the very few prosecutions for
wetlands violations under CWA).
234 Consider, for example, the radiation emissions involved in In re Hanford
Nuclear Reservation Litigation, 292 F.3d 1124 (9th Cir. 2002), which occurred
at the world's first plutonium production facility, Hanford Engineering Works.
The emissions included over 200 types ofradionuclides that occurred over a forty
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677
Hidden harms occur frequently in CAA violations, as
breathing is a common activity, and where violations are simply
never reported, or labeled as accidents.235 The potential for
violators to cause disease without detection can never be adequately calculated. The deterrent value of aggressive enforcement
of environmental statutes then becomes critical.
CONCLUSION AND SUGGESTED IMPROVEMENTS
How could the RCO provision be improved? A source of
confusion over the past twenty years of case law and commentary
has been how the RCO provision can and should be applied. As a
starting point, one suggestion is that the statutes should explicitly
adopt the most important holdings in the leading decisions, which
are recognized applications of traditional criminal law. First, that
the statute creates an affirmative duty for RCOs to seek out and
prevent violations, and that a knowing failure to fulfill that duty
is a criminal act. The public is demanding increased corporate
accountability in all areas.236 The recent enactment of the
Sarbanes-Oxley Act237 is indicative of this trend. Sarbanes-Oxley
imposes a statutory duty on auditors to report violations of
year period from 1944 to 1987. Risk in contracting cancer and thyroid related
diseases will last for many decades.
235 Hearing,supranote 13 (testimony and prepared statement of Eric Schaeffer).
236 See Kathleen F. Brickey, Andersen's FallFrom Grace, 81 WASH. U. L.Q. 917,
959 (2003).
Andersen's fall from grace is a cautionary tale. Its history of
failed audits reveals a firm culture that encouraged
manipulation and deceit. Cast in the most favorable light,
Andersen's lax policies and aggressive practices facilitated a
massive corporate fraud. When exposure of the fraud became
imminent, Andersen's lead Enron engagement partner
orchestrated an expedited effort to shred incriminating
documents before the investigators arrived. Andersen then
sought to save face by publicly impugning the integrity of the
investigation, portraying it as a gross abuse of prosecutorial
power. All of this in order to save the firm.
Id.
237 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002). The
Act is codified in various sections of Titles 15 and 18 of the United States Code.
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accounting laws-the public has a right to expect no less of a
corporation in its environmental reporting duties.
Brickey has identified how clear these duties are. Sign reports
honestly and accurately. Notify the EPA of substantive violations,
as permits require. Most violations of environmental
criminal laws
23
involve such "elementary standards" of conduct. 1
However, the concerns that Lazarus and others have voiced
are valid: to be a criminal violation, the duty on a corporate officer
must be unmistakably clear. What is true in the case law is that
no responsible corporate officer has been sent to prison under a
"technical violation," but that the statute could also reflect a better
clarity. One possibility would shift DOJ guidelines on how to
identify criminal behavior to the statute to determine what level
of care is to be expected from a responsible corporate officer. These
would include an increased duty and culpability when the
substances involved are hazardous, when the industry violates
repeatedly, taking into account what are known as "bad actor"
provisions-multiple cases of "accidents" being proof of breaching
a duty of care the industry's level of cooperation and compliance,
and employee training programs. Such changes would
appropriately shift from the prosecutor's office being responsible
for defining what is criminal, and give that task to the statute
itself.
The legislature could also adopt the holding in Self and other
decisions, that the officer's position can be used as circumstantial
proof of knowledge of the violations. Criticisms here are well taken,
and the courts have responded that there is not, nor should there
be, an imposition of strict liability or a lowered mens rea
requirement.
Finally, the Court in Park noted that the duty is high when
public safety is involved, but that the duty does not require that
which is impossible.239 If the RCO provision is used, the statute
could again explicitly recognize the affirmative defense outlined in
238
EPA identifies some of this conduct which, as Brickey notes, is clearly
criminal. Data fraud is a common one. See Criminal Enforcement, U.S.
Environmental Protection Agency, at http://www.epa.gov/compliance/criminal/
(last visited Apr. 4, 2005).
239 United States v. Park, 421 U.S. 658, 673 (1975).
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Park, that a "defendant was 'powerless' to prevent or correct the
violation ... ."240 The lessons from Dotterweich and Park are still
valid. Corporations who expose a helpless public to large-scale
risks have a duty to protect against, and hopefully prevent, those
risks. Central to idea of public welfare offenses is the notion that
the corporation is run by individuals-the notion that someone
must be in charge. The RCO doctrine helps to ensure that someone
in fact is in responsible by codifying this duty and holding those in
the best position to prevent harm responsible. "The 'responsible
relationship' the person might have to these activities may vary
from being the plant manager who was at his office, the vessel
captain who was in his cabin, or the corporate president in his
office hundreds of miles from where the act occurred," but someone
must and should be held accountable.241 Fulfilling that duty is, in
the Court's words, no more than we have a right to expect.242
Stephen N. Landsman, Criminal Liability for Corporate Actions: The
Responsible ShareDoctrine,J. DUPAGE COUNTYBAR ASS'N, May 1997, available
at http://www.dcba.org/brief/mayissue/1997/art50597.htm (citations omitted).
241 Kevin L. Colbert, Considerationsof the Scienter Requirement and the Responsible Corporate Officer Doctrine for Knowing Violations of Environmental
Statutes, 33 S. TEX. L. REV. 699, 701 n.16 (1992) (arguing that if the RCO faces
criminal liability based on position, defense of reasonable action should be
available).
240
242
Park, 421 U.S. at 672.